In re Bowdoin's Estate

• Decision Date: 03 July 1916
• Citation: 98 A. 514
• Parties: In re BOWDOIN'S ESTATE.
• Court: New Jersey Supreme Court

98 A. 514

In re BOWDOIN'S ESTATE.

Prerogative Court of New Jersey.

July 3, 1916.

Appeal from Orphans' Court, Union County.

Intermediate accounting by the executor of the estate of Hannah L. Bowdoin, deceased. From a decree allowing the account, Harriet L. Biggs, claiming to be an adopted child of deceased, appeals. Affirmed.

The following is the opinion of Connolly, J., in the orphans' court:

This matter comes up on the presentation of an intermediate account of the executor of Hannah L. Bowdoin, deceased, in which the executor asks for a partial distribution of the estate of the testatrix, amongst the persons entitled thereto. Harriet L. Biggs, who claims to be entitled to participate in the distributive estate, as an adopted daughter of testatrix, excepts to the allowance of a gift of $2,000, made to Benjamin C. Mead, by the testatrix, on August 27, 1914. The executor contends that the exceptant has no standing before the court, for the reason that she was not an adopted daughter of the testatrix, and is in no way entitled to participate in her estate.

The following facts, upon which the exceptant bases her claim to have been an adopted child of the testatrix, have been submitted to the court: On June 30, 1866, an indenture, which has been admitted in evidence, was made, between the "American Female Guardian Society, of New York City," of the first part, and Mr. James W. and H. Louise Bowdoin, of the city of Rahway, N. J., of the second part. The indenture sets forth that Charity Ann Johnson, a female child (now known by her marriage name, as Harriet L. Biggs), of the age of 2 years on October 19, 1865, was surrendered to the said society, and that the parties of the second part had applied to the manager of the society to put out and place the said child with them, by adoption and as an apprentice, until she should arrive at the age of 18 years. The indenture then sets forth that the said society has "put, placed out, bound out, and by these presents do put, place and bind out, the said Charity Ann Johnson, as an apprentice, unto the party of the second part, to dwell with and serve them from the day of the date of these presents until the said apprentice shall attain the age of eighteen years. During all of which time the said apprentice shall serve on all lawful business according to her power, wit and ability, and shall honestly, orderly and obediently, in all things, demean and behave herself towards her said employer and all others. And the party of the second part, for themselves, their executors and administrators, doth covenant and agree, to and with the parties of the first part, and their successors, that the party of the second part, during all the term aforesaid, shall and will provide and allow, unto the said apprentice, competent and sufficient meat, drink and apparel, washing, lodging, mending, and all other things necessary and fit for an apprentice; and shall and will teach and instruct, or cause the said apprentice to be taught and instructed, to read and write, and so much of arithmetic, spelling and grammar as is needful for persons in the ordinary walks of life; and shall also give unto the said apprentice, at the expiration of the said term of service, a new Bible, and the sum of ten dollars in money, or a satisfactory equivalent, and shall cause such apprentice to attend public worship on Sunday, and the Sunday school (whenever such attendance is not too inconvenient) during all the term aforesaid, and frequently to read the Holy Scriptures aloud; and shall not allow the said apprentice to be absent from the service of her said foster parents without express leave; nor suffer her to haunt alehouses, taverns or playhouses; nor to play at cards, dice or any unlawful game; but will exert their authority to cause and procure the said apprentice to behave herself in all things, as a faithful apprentice ought to do during the term aforesaid"—and further reads as follows: "Although the present instrument binds the above-named child strictly as an apprentice, it is, nevertheless, the true intention of the parties of the first part to place, and of the parties of the second part to receive, said apprentice as an adopted child, to reside in the family of the party of the second part, and to be maintained, clothed, educated and treated, as far as practicable, with like care and kindness, as if she were in fact the child of the party of the second part." The indenture also provides that if the apprentice, or either of the parties to its execution, should become dissatisfied in any wise with the contract, or the situation or employment under it, such indenture should cease and become void.

The indenture was executed by the society on June 30, 1866, and appears to have been acknowledged on February 10, 1868. A duplicate of the indenture, except as to acknowledgments and the county clerk's certificate, was executed by the party of the second part on June 30, 1866, and was acknowledged on June 20, 1867, in Union county, N. J., before Edward X. Rogers, a master in chancery, and the county clerk's certificate, certifying to the official character of the master, was attached to the acknowledgment.

The question now before the court is this: Did the indenture work an adoption of the child by the parties of the second part? Adoption of children was unknown to the common law, and no law was in existence, in either New Jersey or New York, changing or altering the common law, at the time when the indenture was executed. This was known to the parties who signed the indenture, and I am of the opinion that the indenture did not provide for anything more than the binding out of Charity Ann Johnson (the exceptant), to the testatrix and her husband, until she was 18 years of age. During the period intervening between the date of the indenture and the time when the indentured child reached 18...